First, to do no harm: The cruelty of the Second Street and Marina Boulevard evictions

We characterize them not by what they have managed to retain, but by what they lack — the homeless. They live lives many of us cannot imagine. I drop in on those lives, crawling through a hole in a fence to reach a campsite hidden by bushes next to a freeway, stumbling over a pile of bicycle parts to stoop under a tarp strung up against the back wall of a warehouse, yelling into a jumble of tangled dumpster-dived treasures, shopping carts and food containers from which a head emerges like a gopher from its burrow. “I was attacked all night by rats,” says the head sticking a little further out from its burrow and blinking in the sun.

It’s always them. We debate them, we invoke them in our polemics, we sympathize with them, we scorn them, we lump them into a generic mass, we fantasize about them, we are alternatively charitable and punitive, but they are always the other. We make policies about them; we plan to “solve” their problems. What we don’t do is listen to them. So I leave my home with its soft bed and hot shower, where I can lock the door and be secure in my privacy, and I try.

On Memorial Day on Marina Boulevard, the sun rose over a field of dry grass and fell on a row of RVs and campers in which people had been living for up to a year. Now they were scurrying about in a panic, some angry, some despairing, some resigned, because Berkeley police had arrived in two squad cars and announced that everyone had to leave or they would be ticketed and their vehicles towed. I heard people say: “Where can we go?” “Tell us where it’s legal for us to live.” I heard the police officers say they didn’t know. It wasn’t their job to know.

I heard the same refrain on Second Street a week later, as Berkeley public works crews escorted by police prepared to scoop up anything that people couldn’t move that day. Again people asked, “Where can we go?” and again the police officers repeated their mantra: We don’t know, you gotta go. Three days earlier, the police had posted notices saying that if you are living on Second Street, you are committing the crime of lodging and will be cited and arrested if you don’t leave. Immediately. People had been living on that pitted, potholed, barely paved street amid the dirt and the dust for more than a year. They had created a curbside community in a hive of tents and shanties and ramshackle shelters amid piles of their belongings that was dysfunctional and functional, supportive and predatory, but a community nevertheless. With a bureaucratic keystroke and front loaders and dump trucks, it was gone in a day.

We don’t have a solution to homelessness, not with $1.3 million being the median price of a house in Berkeley; not with the average rent in Berkeley in 2017 being $3,800; not while the complaints of realtors, property owners and business associations that the homeless scare away customers and bring down property values are listened to like the voices of angels singing on high, while the cries of the homeless are lost in the interstellar space that divides “them” from “us”; not until housing is a right and not a commodity.

So admitting that we don’t have a cure for homelessness, let us take as our guide the principle that sums up the duty of doctors to their patients: “First, to do no harm.” If we are to do no harm, we must, for the foreseeable future, find sites for sanctioned campsites and places where people are permitted to live in their vehicles. Simple.

What Berkeley did on Second Street and on Marina Boulevard was harm.

It was also cruel. It should be unusual. Cruel and unusual. The phrase comes from the Eighth Amendment to the U.S. Constitution, the one that prohibits “cruel and unusual punishment.” To punish people for doing those things that every human being must do if they are to survive — find shelter from the storm, have a place to lie down and sleep at night — while denying them a way to meet those needs, is cruel and should never become normal. Courts are beginning to look at the treatment of people who are homeless through the lens of the Eighth Amendment. How the constitutional question is decided remains to be seen. Whatever the outcome, we should defend human rights even if courts say they are not enshrined in the Constitution. I would hope that Berkeley can find its way to humane treatment of its homeless population without waiting for the courts to find that the Constitution requires it.

Osha Neumann is a supervising attorney at the East Bay Community Law Center.